Citation Nr: 9915878
Decision Date: 06/09/99 Archive Date: 06/21/99
DOCKET NO. 07-25 874 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to service connection for a bilateral hip
disorder, manifested by bilateral hip pain, stiffness, and
leg cramps.
2. Entitlement to an evaluation in excess of 10 percent for
status post removal of osteochondroma of the left proximal
tibia.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The veteran served on active duty for a period of
approximately 20 years before retiring in May 1993. He
served in the Southwest Asia Theater during the Persian Gulf
War.
This matter comes to the Board of Veterans' Appeals (Board)
from rating determinations of the Department of Veterans
Affairs (VA) Regional Office (RO) in Denver, Colorado.
With regard to the service connection issue for a bilateral
hip disorder, it is noted that the veteran's disability claim
at the time of separation from service referred to
degenerative joint disease of the back, knees, hips, and
ankles. This issue was developed as entitlement to service
connection for arthritis of multiple joints. After the
December 1993 rating action, in a VA FORM 21-4138, filed as a
Notice of Disagreement in February 1994, the veteran
disagreed with that determination, specifically referring to
the denial of arthritis of the hips. In August 1997, the RO
denied service connection for arthritis of the hips. In
another VA FORM 21-4138, filed in October 1997, the veteran
cited more specifically a disability of the hips manifested
by bilateral hip pain and joint stiffness. In August 1998,
the RO denied service connection for an undiagnosed illness
manifested by swelling of joints/arthralgia, not otherwise
specified, and leg cramps to include hip pain and joint
stiffness. Thus, it is the Board's conclusion that the issue
is most accurately reflected as shown on the front cover.
FINDINGS OF FACT
1. There is no competent medical evidence of record showing,
nor is there a basis for a legal presumption, that the
veteran has a bilateral hip disorder, manifested by pain,
joint stiffness and leg cramps, that is related to service.
2. Residuals of status post removal of osteochondroma of the
left proximal tibia include subjective complaints of pain
with discomfort localized beneath the patella; recent
examination revealed no atrophy or swelling, and range of
motion was full. Stability testing was negative, but there
was evidence of crepitus and discomfort with decompression of
the patella while contracting the quadriceps (consistent with
patellofemoral syndrome); there was no evidence of
fatigability, incoordination, or weakened movement.
CONCLUSIONS OF LAW
1. The claim for service connection for a bilateral hip
disorder manifested by pain, joint stiffness, and leg cramps,
is not well grounded. 38 U.S.C.A. § 5107 (West 1991).
2. The criteria for a rating in excess of 10 percent for
residuals of status post residuals of removal of
osteochondroma of the left proximal tibia have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14,
4.20, 4.40-4.46, 4.59, 4.71a, Diagnostic Code 5256-5263
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection
Factual Background
The service medical records reflect that the veteran was seen
for complaints of pain in multiple joints, to include the
hips, in September 1989. He gave a past history of arthritis
with no swelling. No hip disorder was diagnosed. Additional
hip problems were not noted in the service records and no
bilateral hip disorder was diagnosed. Additionally, there
was no report of joint swelling or leg cramps, and no chronic
illness manifested by arthralgia.
Post service medical records include VA and clinical records
as provided by Evans Army Hospital in Fort Carson, Colorado,
and Fitzsimmons Army Medical Center in Aurora, Colorado. The
bulk of these record show treatment for disabilities other
than the hips, but it was noted upon VA examination in August
1993 that the veteran complained of arthritis of multiple
joints, to include the hips. Specifically, he reported
stiffness in the morning. Examination reflected full range
of motion and X-rays were negative. There was no evidence of
warmth, swelling, or erythema of any joint.
Army facility X-rays of the hips in August 1994 were
negative. In February 1995 at the Evans Army Hospital,
however, it was noted that the veteran had arthralgia and leg
cramps. In April 1995, arthralgia without arthritis was
reported.
Upon VA examination in February 1998, the veteran complained
of hip pain since 1991. He had had no specific injury and no
specific diagnosis had been made. He had taken anti-
inflammatory medications. There had been no change in his
symptoms for over 7 years. Currently, he experienced
discomfort over the anterior groin, lateral trochanter, and
posterior aspect of his hips. The right and left were
approximately equal. The symptoms were provoked by standing
for 16 to 18 hours at a time or by constantly moving at work.
He walked around for 6 hours at a time at work. He had had
to give up some of his personal activities.
Examination showed that there was no evidence of atrophy or
swelling in the lower extremities. With reference to his
bilateral hips, he had full range of motion. The veteran
indicated some provocation of groin pulling with abduction.
X-rays of the hips and femoral heads were normal. The
examiner observed the veteran walking for 100 feet with no
indication of weakened movement, fatigability, decreased
strength, or altered range of motion. X-rays of the hips
were normal. The examiner's assessment was bilateral hips
with discomfort as described with normal examination and
radiographic evidence of normal anatomy and insufficient
evidence to make a diagnosis of an acute or chronic disorder
to date.
Pertinent Laws and Regulations
The threshold question that must be resolved with regard to a
claim is whether the veteran has presented evidence that the
claim is well grounded. Under the law, it is the obligation
of the person applying for benefits to come forward with a
well-grounded claim. 38 U.S.C.A. § 5107(a). A well grounded
claim is "[a] plausible claim, one which is meritorious on
its own or capable of substantiation. Such a claim need not
be conclusive but only possible to satisfy the initial burden
of § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed.
Cir. 1997). Mere allegations in support of a claim that a
disorder should be service-connected are not sufficient; the
veteran must submit evidence in support of the claim that
would "justify a belief by a fair and impartial individual
that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak
v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and
quantity of the evidence required to meet this statutory
burden depends upon the issue presented by the claim.
Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993).
The U.S. Court of Appeals for Veterans Claims (Court) has
held that, in general, a claim for service connection is well
grounded when three elements are satisfied with competent
evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First,
there must be competent medical evidence of a current
disability (a medical diagnosis). Rabideau v. Derwinski, 2
Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App.
223, 225 (1992) Second, there must be evidence of an
occurrence or aggravation of a disease or injury incurred in
service (lay or medical evidence). Cartwright v. Derwinski, 2
Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465
(1994). Third, there must be a nexus between the in-service
injury or disease and the current disability (medical
evidence or the legal presumption that certain disabilities
manifest within certain periods are related to service).
Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7
Vet. App. 359 (1995).
The Court has further held that the second and third elements
of a well-grounded claim for service connection can also be
satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence
that a condition was "noted" during service or an
applicable presumption period; (b) evidence showing post-
service continuity of symptomatology; and (c) medical or, in
certain circumstances, lay evidence of a nexus between the
present disability and post-service symptomatology. See
38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-
97 (1997). Alternatively, service connection may be
established under 38 C.F.R. § 3.303(b) by evidence of (i) the
existence of a chronic disease in service or during an
applicable presumption period and (ii) present manifestations
of the same chronic disease. Ibid.
Also controlling in this case are decisions of the Court
concerning the types of evidence required to establish
important facts. The Court has held that a lay person can
provide probative eye-witness evidence of visible symptoms,
however, a lay person can not provide probative evidence as
to matters which require specialized medical knowledge
acquired through experience, training or education. Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has
further held that "where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is 'plausible' or
'possible' is required." Grottveit, 5 Vet. App. at 93.
The basic framework of the law and regulations provides that
service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R.
§ 3.303 (1998).
For a showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." Continuity of symptomatology is required where
the condition noted during service is not, in fact, shown to
be chronic or where the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b) (1998).
38 C.F.R. § 3.317 (1997) provides, in pertinent part:
(a)(1) Except as provided in paragraph (c) of this section,
VA shall pay compensation in accordance with chapter 11 of
title 38, United States Code, to a Persian Gulf veteran who
exhibits objective indications of chronic disability
resulting from an illness or combination of illnesses
manifested by one or more signs or symptoms such as those
listed in paragraph (b) of this section, provided that such
disability:
(i) became manifest either during active military, naval, or
air service in the Southwest Asia theater of operations
during the Persian Gulf War, or to a degree of 10 percent or
more not later than December 31, 2001; and
(ii) by history, physical examination, and laboratory tests
cannot be attributed to any known clinical diagnosis.
(2) "Objective indications of chronic disability" include
both "signs," in the medical sense of objective evidence
perceptible to an examining physician, and other, non-medical
indicators that are capable of independent verification.
(b) For the purposes of paragraph (a)(1) of this section,
signs or symptoms which may be manifestations of undiagnosed
illness include, but are not limited to fatigue, signs or
symptoms involving the skin, headache, muscle pain, joint
pain, and gastrointestinal signs or symptoms.
Analysis
The evidence does not reflect treatment during service for a
bilateral hip disorder. While the post service records do
include reports of leg cramps and arthralgia in 1995, all
other examinations, to include X-rays in 1993 and 1998, were
negative for positive findings regarding the hips. Clinical
findings have included full range of motion without evidence
of warmth, swelling, or erythema. Therefore, while there was
as assessment of arthrlagias and leg cramping in 1995, the
clinical evidence before and since does not show objective
indications of chronic disability. Apparently, the report of
arthralgia and cramping were based on history as given by the
veteran. The law requires that there be disability present,
and that it be represented by objective indications such as
are perceptible to a physician, or there must be non-medical
indications that are capable of independent verification.
No objective indications have been reported; i.e., the
veteran has been reported to have full range of motion and no
evidence of atrophy or swelling despite his complaints, of
pain and stiffness. Additionally, no non-medical indicators
have been reported that have independent verification in the
record. Mere complaints without any objective verifiable
evidence of disability is not enough. There has been no
objective clinical evidence of disability due to muscle and
joint aches and pain, such as wincing on use or motion,
muscle tenderness, swelling, atrophy, or weakness, or joint
swelling, tenderness, or limitation of motion, or the like,
to indicate that a disability is present from an undiagnosed
illness.
The veteran has asserted that he has a bilateral hip disorder
of service origin, but as a lay person, he is incapable of
indicating this, as medical expertise is required. Espiritu;
Grottveit, supra.
Assuming arguendo, that a bilateral hip disorder as
manifested by pain, joint stiffness, and leg cramps is
present, the evidence does not show that it has been
manifested to a degree of 10 percent. 38 C.F.R. Part 4,
including §§ 4.40, 4.45, 4.71 (1998).
As such, the claim must be denied as not well grounded.
Caluza, supra. There is neither a current disability shown
which is related to the service, nor evidence of chronic
disability which is both from undiagnosed illness and
manifested to a degree of 10 percent.
An Increased Evaluation
Factual Background
A review of the service medical records reveals that the
veteran was seen in December 1973 for left knee pain. He was
hospitalized in January-February 1974 and underwent excision
of an osteochondroma. In 1981 and 1985, the veteran was seen
for left knee pain. In 1985, he also reported popping. An
inflamed ligament was diagnosed. Left knee complaints
continued in 1989. The impression was bilateral
retropatellar pain syndrome. There was no ligament laxity
and X-ray was interpreted as normal.
Upon VA examination in August 1993, clinical findings were
essentially normal. Service connection, however, for status
post removal of an osteochondroma to the left knee in
December 1993. A noncompensable rating was assigned,
effective from June 1, 1993, the date the veteran filed his
claim.
In an October 1994 statement, the veteran reported that he
used a brace for his left knee. A September 1994 report from
an army facility hospital reflects the need for a brace and
the diagnosis of retro patellar pain syndrome. At the time,
the veteran reported chronic pain, occasional locking, and
giving way.
Upon VA examination in February 1995, the veteran reported
pain when rising from a squat or with movement after
prolonged immobilization. There was daily morning stiffness
which was worse in the cold weather. He said that it was
more difficult to go up stairs than down. He could walk
unlimited distances and run 2 miles. Physical examination
noted that he was wearing a left knee brace. He walked
without a limp and did not have much difficulty rising from a
chair. There was mild clicking on passive flexion and
extension. A residual surgical scar on the lateral left knee
was barely visible. Range of motion of the left knee was
normal, and he could accomplish a deep knee bend without much
difficulty. All ligaments were stable and Lachman's and
McMurray's tests were negative. X-ray was normal. The
examiner's diagnosis noted the inservice excision of the
osteochondroma, and residuals as described.
An August 1997 rating decision resulted in an increased
evaluation of 10 percent for the service-connected left knee
disorder.
Subsequently dated records include a February 1998 VA
examination report. The veteran complained of daily left
knee pain with discomfort localized beneath the patella. He
reported that his knee buckled on the stairs, on occasion.
He stated that there were no particular aggravating factors
for his pain. He denied swelling of the knee, but reported
that he had to give up racquetball. He experienced increased
symptoms with walking more than 2 blocks at a time. He
stated that he had the most difficult time getting up from a
kneeling or squatting position. He reported no treatment for
his knee since 1995.
Examination revealed no atrophy or swelling in the lower
extremities. He had full range of motion of the left knee.
Stability testing was negative. There was evidence of
crepitus and discomfort with compression of the patella while
contracting his quadriceps. This was consistent with
patellofemoral syndrome. He was asked to perform 5 deep knee
bends. The appellant reported increased discomfort in the
knee occurred by the fourth attempt. There was no change in
his range of motion, and there was no evidence for
fatigability, incoordination, or weakened movement.
Pertinent Laws and Regulations
A person who submits a claim for benefits under a law
administered by the VA shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.
38 U.S.C.A. § 5107(a) (West 1991). Where a disability has
already been service-connected and there is a claim for an
increased rating, a mere allegation that the disability has
become more severe is sufficient to establish a well-grounded
claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994);
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
Accordingly, the Board finds that the veteran's claims for
increased ratings are well grounded within the meaning of
38 U.S.C.A. § 5107(a) (West 1991).
When entitlement to compensation has already been established
and an increase in the disability rating is at issue, the
present level of disability is of primary concern. Although
a rating specialist is directed to review the recorded
history of a disability in order to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. Francisco v. Brown, 7 Vet.
App. 55 (1994); 38 C.F.R. § 4.2 (1998).
Disability evaluations are based upon the average impairment
of earning capacity as determined by a schedule for rating
disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part
4 (1998). Separate rating codes identify the various
disabilities. 38 C.F.R. Part 4. In determining the current
level of impairment, the disability must be considered in the
context of the whole-recorded history, including service
medical records. 38 C.F.R. §§ 4.2, 4.41 (1998). An
evaluation of the level of disability present also includes
consideration of the functional impairment of the veteran's
ability to engage in ordinary activities, including
employment, and the effect of pain on the functional
abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1998);
DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995).
The determination of whether an increased evaluation is
warranted is based on review of the entire evidence of record
and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the
evidence is assembled, the Secretary is responsible for
determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7 (1998).
Analysis
In evaluating the severity of a particular disability it is
essential to consider its history. 38 C.F.R. § 4.1 (1998);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claim placed
in appellate status by disagreement with the initial rating
award and not yet ultimately resolved, as is the case with
the claim herein at issue, is an original claim as opposed to
a new claim for increase. Fenderson v. West, 12 Vet. App.
119 (1999). In such cases, separate ratings may be assigned
for separate periods of time based on the facts found, a
practice known as "staged" ratings. Id., at 126. On the
other hand, where entitlement to compensation has already
been established, the appellant's disagreement with an
assigned rating is a new claim for increased based on facts
different from a prior final claim. Suttman v. Brown, 5 Vet.
App. 127, 136 (1993). In this case, rather than provide a
"staged rating" for discrete intervals during the period
under appellate review, the RO elected to make the recent
increased rating awarded retroactive to the earliest
effective date assignable. It is evident that the rating
action by the RO contemplated all the relevant evidence or
record. Accordingly, although the RO characterized this
issue as an "increased rating," the substantive
adjudicative considerations set forth in Fenderson, supra,
were satisfied by the RO's adjudicative process and the Board
does not find that the claimant will be prejudiced by
appellate review on the current record.
Disabilities of the knee and leg are rated in accordance with
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5256-5263. The
veteran's left knee disability cannot be rated under DC 5256,
as it does not exhibit ankylosis. Ankylosis is defined as
immobility and consolidation of a joint due to disease,
injury, or surgical procedure. See Lewis v. Derwinski, 3
Vet. App. 259 (1992). He cannot be rated under DC 5258 as
his disability does not involve semilunar, dislocated
cartilage, or "locking". He may be rated under DC 5259,
but the maximum rating under that code is 10 percent, which
is his current rating. A rating under DC 5260, for
limitation of flexion, would result in a noncompensable
rating, as would a rating under DC 5261, for limitation of
extension. He cannot be rated under DC 5262, as his
disability does not involve impairment of the tibia or
fibula, nor can he be rated under DC 5263, as his disability
does not involve genu recurvatum.
The Board notes that the veteran's primary complaints have
been pain and discomfort localized beneath the patella. Very
few objective symptoms have been detected during examinations
as being manifestations of his disability. Most recently,
upon examination in February 1998, the examiner noted that
there was crepitus and discomfort with compression of the
patella while contracting his quadriceps. Otherwise,
however, clinical findings were essentially negative, to
include the fact that there was no atrophy or swelling, and
full range of motion of the left knee range of motion.
Additionally, there was no instability.
The RO has evaluated the veteran, and assigned a 10 percent
rating, based on the residuals of removal of an
osteochondroma, rated as analogy to removal of cartilage,
semilunar, removal of, symptomatic, which provides for a 10
percent evaluation. (DC 5259)
The Board has considered DeLuca v. Brown, 8 Vet. App. 202
(1995), which addresses 38 C.F.R. §§ 4.10, 4.14, 4.40, 4.45,
and 4.59, in reaching its conclusion in this case. As it was
recently noted that there was no evidence of fatigability,
incoordination, or weakened movement in the left knee,
additional disability rating under these codes is not
warranted. The Board also finds that the current evaluation
contemplates the symptomatology and resulting impairment
demonstrated in the medical evidence of record. The Board
concurs with the RO that there are no unusual or exceptional
factors such as to warrant an extraschedular rating under the
provisions of 38 C.F.R. § 3.321(b) (1) (1998).
Accordingly, as current residuals consist primarily of
crepitus and complaints of discomfort in the patella, an
evaluation in excess of the currently assigned rating is not
warranted. The evidence in this case is not so evenly
balanced as to require application of the provisions of
38 U.S.C.A. § 5107(b) (West 1991). In addition, the evidence
does not render a question as to which of two evaluations
will be assigned, so the provision of 38 C.F.R. § 4.7 are
also not for application.
ORDER
The veteran not having submitted a well grounded claim of
entitlement to service connection for a bilateral hip
disorder, manifested by pain, joint stiffness, and leg
cramps, the appeal is denied.
A rating in excess of 10 percent for a left knee disorder is
denied.
Richard B. Frank
Member, Board of Veterans' Appeals